Public Comment

After a year and a half of listening to many perspectives and extensive deliberations, the Creeks Task Force (CTF) has carefully crafted a set of recommendations to revise the Creeks Ordinance that respects private property owners’ interests and protects the natural environment. (See www.ci.berkeley.ca.us/ planning/landuse/creeks). The CTF Recommendations are now before the City Council. 

The original Creeks Ordinance, passed by the council in 1989, established a 30-foot setback requirement from the centerline of an open creek for new roofed structures. The ordinance also banned further culverting of creeks and encouraged daylighting of creeks. A subsequent city attorney opinion found that culverted creeks were also covered by the ordinance. The city attorney’s position is that culverted creeks are the responsibility of property owners. Neither the original ordinance nor subsequent opinions were communicated adequately to affected property owners. The original creeks ordinance provided for the rebuilding of homes more than 50 percent lost or destroyed built within a 30-foot setback if a variance was obtained. At a city council meeting in September 2004, the City Council voted to change this to rebuild by right within existing zoning ordinance provisions. 

Based on input from creek property owners, creek protection advocates, scientists, and other jurisdictions, the CTF agreed to 13 statements that can be summarized as follows: importance of creeks as an inter-connected drainage system; need to treat underground creek culverts differently than open creeks; encouraging creek daylighting on a voluntary basis; 30-foot from a creek centerline is an area of interest; people should be able to rebuild destroyed or damaged buildings; existing structures within the 30-foot setback area may be repaired, renovated and maintained within the current footprint. 

These statements of agreement translate into the following regulatory revisions: 

• Keep the 30-foot setback requirement from the creek centerline for new roofed structures. 

• Although still in the Creeks Ordinance, culverted creeks would be treated similarly to storm drains for purposes of setbacks for safety, access and maintenance and handled administratively by engineering staff in Public Works Department. Any setbacks for culverted creeks would be determined on a case-by-case basis. The 30-foot setback would apply only to open creeks.  

• Allow vertical expansions of structures within 30 feet of the creek centerline with an environmental analysis showing that the expansion will not adversely affect the creek. Horizontal expansions of buildings within 25 feet of the creek centerline would not be allowed without a variance, but building out between 25-30 feet would be allowed with an administrative use permit (AUP) and environmental analysis.  

• New decks, currently not regulated, would not be allowed within 10 feet of the creek centerline, but new decks and replacement or rebuilt decks would be allowed within 10-30 feet of the creek centerline with environmental analysis. 

• Only paving for footpaths and bridges is allowed within 10 feet of a creek centerline. However, pervious or permeable surfaces within 10-30 feet of a creek centerline would be allowed. Impervious surfaces would not be allowed within 30 feet of the creek centerline at all. Bridges would be built with a clear span necessary to pass a one-in-100-year storm event. 

These proposed regulatory revisions represent a delicate balance between private property owners’ interests and the need to protect creeks in a densely populated urban area. On the one hand, private property owners would have the flexibility to build up or down if their house were within the 30-foot setback as well as building up to five-foot out into the setback area with appropriate procedures. Furthermore, those living in a house over a culverted creek would no longer be subject to the 30-foot setback requirement for open creeks but would be subject to engineering staff review in the Public Works Department. On the other hand, a new setback requirement for bridges and decks as well as for pervious-only pavement within the setback area would be established. 

In arriving at these recommendations, the CTF discussed several issues in depth. First, the CTF decided to keep the current 30-foot-from-the-centerline setback requirement rather than adopting a case-by-case approach because they thought the latter would be more confusing to the public and more difficult to administer. Furthermore, a case-by-case approach could be inconsistent and might result in inadequate riparian protection. 

Second, the CTF supported the property owners’ ability to rebuild damaged or destroyed homes within the setback area; however, the CTF felt that property owners should be subject to the same requirement for a Use Permit from the Zoning Adjustments Board as any other (legally) nonconforming structure. The council this week sent this issue to the Planning Commission.  

Third, the CTF debated the issue of whether culverted creeks should continue to be regulated under the Creeks Ordinance or taken out altogether. Two reasons why the CTF decided to leave culverted creeks in the ordinance: 1) transition zones—where culverted creeks enter an open creek—need to be regulated by the Creeks Ordinance; and 2) culverted creeks are all part of an interconnected drainage system, e.g. the watershed. The bottom line is that CTF recommendations would treat culverted creeks as storm drains and the 30-foot setback requirement would not apply. In essence, the CTF is recommending that the city return to the original creeks ordinance that applied only to open creeks. 

Another issue the CTF addressed was that of adequate notice. In reviewing the history of the Creeks Ordinance, the original ordinance and subsequent interpretations were not adequately communicated to affected property owners. The CTF therefore recommends that the City of Berkeley notify all affected property owners as identified by the city of the approved changes to the Creeks Ordinance as well as advance notice of any future proposed changes.  

Although the CTF was specifically prohibited from dealing with the issue of financial liability for failing culverts due to on-going litigation, they agreed that the city should be looking for other sources of funding. One possibility—and this is my own opinion—is for the city to consider a possible ballot measure to improve both failing culverts AND inadequate storm drains which have led to flooding this winter in parts of the city. The culverts and storm drains are all part of the city’s overall antiquated drainage system and need to be repaired over time.  

Thousands of volunteer, staff and consultant hours as well as extensive input from the public and lengthy deliberations have gone into the CTF recommendations. They represent a delicate and hard-won compromise between property owners‚ interests and creek protection values. When the City Council takes this matter up on May 30, they should support in full the CTF recommendations to revise an outmoded creeks ordinance to meet today’s realities.  

Helen Burke is the chair of the Creeks Task Force. The views expressed here are her own and do not necessarily represent the views of the Creeks Task Force.